The court underscored that unconscionability must be established with strong evidence, and dissatisfaction with contractual modifications does not constitute such grounds for injunctive relief.

JUDGMENT

Aliza Sulaiman J:

Introduction

[1] By consent of the parties, two applications by the Plaintiff were heard together and these are:

(a) the application in encl 3 for, inter alia, an injunction to restrain the Defendant from making a demand for the sum of RM12,360,976.30 or any portion thereof ('Said Sum') under the Performance Guarantee No 99140BGJ6199875 dated 15 May 2017 ('PG') furnished by Malayan Banking Berhad ('MBB') and/ or from receiving the Said Sum until the final determination of the Originating Summons ('OS') in encl 1; and

(b) the application in encl 1 for, inter alia, a declaration that the demand as above stated, if made, would be unconscionable, wrong in law and null and void.

[2] Pending the hearing and disposal of these applications, the Court had, by consent of the parties, granted an Ad Interim Injunction as per prayer (1) in encl 3, namely that the Defendant be restrained from making a demand for the Said Sum under the PG until the final determination of encl 1 upon the undertakings by the Plaintiff to compensate the Defendant if the Court was to subsequently find that the Injunction order made has caused loss to the Defendant.

[3] Following the hearing of encls 1 and 3 and after due consideration being given to the affidavit evidence and submissions by the parties, this Court had dismissed both applications in encls 1 and 3 with costs of RM15,000.00.

[4] The full grounds for the said decision are elaborated in the succeeding paras However, at the very outset, it should be made clear that in the deliberation of the two applications, the Court did not take into account paras 16.4, 16.5, 16.9, 16.10 and 25 in the Defendant's Affidavit In Reply ('AIR') which was affirmed on 13 March 2020 (encl 15) together with 10 letters that were exhibited therein in so far as they relate to the Plaintiff's request to descope and relieve it from further performance of the contract and for advance payments for the completion of the section of the works known as Primary Process Building and Associated Works including Amenity ('PP').

[5] These averments and letters were the subject of another application in encl 20 by the Plaintiff pursuant to O 41, r 6 of the Rules of 2012 ('RoC 2012') for an order that these matters be struck out on the ground that it is scandalous, irrelevant or otherwise oppressive. The said application was dismissed by the Court with costs of RM5,000.00 on 20 July 2020. The Plaintiff had initially appealed against the said decision, but the Notice of Appeal was withdrawn on 19 February 2021. As submitted by Mr Prakash Menon, his client's entire case is not premised on the averments and exhibits sought to be expunged alone and the Court found that there is other ample evidence to enable the Court to arrive at a decision on encls 1 and 3.

Background Facts

[6] By way of a Letter of Award ('LoA') dated 16 December 2016, the Defendant appointed the Plaintiff as the main contractor for the project known as "Proposed Primary And Further Processing Plants On 15562 (V5 Site), Lot 15656, Lot 15657 And Lot 6478 (Main Site) At Lumut Port Industrial Park, Kampung Acheh, Mukim Lumut Daerah Manjung, Perak Darul Ridzuan (Tender Package Main Works For V5, Primary Processing And Further Processing Plant)" ('Project') for the contract sum of RM247,219,526.00.

[7] The parties agreed to adopt the IEM Conditions of Contract for Works Mainly of Civil Engineering Construction, First Edition, May 1989 (Second Reprint September 1994) ('CoC') together with the Appendix to the CoC and the Special Provisions to the CoC (collectively referred to as the 'Contract').

[8] According to Item 2 of the LoA, the scope of works for the construction package shall cover the full construction (CSA and MERP non-process and Utility Distribution network) of the DPP Poultry Plant project as shown in the Bill of Quantities, Tender Drawings and Specifications and any other associated works for the Project ('Works').

[9] Item 5 of the LoA states that the dat